E-Warrants: A Brave New World Presented by Judge Brian Holman Lewisville Municipal Court Rule of Construction Origins in Contract Law Context Determines Scope Civil expands the inquiry Criminal restricts the inquiry 1
Four Corners Rule Adopted into Criminal Law Search Warrants Art. 18.01, C.C.P. states: A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance. Four Corners Rule (cont d.) Application to Arrest Warrants is Less Clear Art. 15.03, C.C.P. states: A magistrate may issue a warrant of arrest when any person shall make oath before the magistrate that another has committed some offense against the laws of the State Rounding the Corners: Criminal Application of the Four-Corners Rule Mark Goodner, The Recorder Vol. 21, Pg. 16 Standing in the Corner: The Shifting Role of Magistrates in the Age of E-Warrants Mark Goodner, The Recorder Vol. 25, Pg. 1 Technology Eroding the Rule? H.B. 1060 (2009) Authorized the issuance of arrest warrants by any method that ensures the transmission of a duplicate of the original warrant (i.e., secure fax or other secure electronic device). H.B. 976 (2011) Authorized the use of an electronic broadcast system to perform Art. 15.17 hearings (Magistrations) 2
The Erosion continues Oath by Phone Clay v. State 391 S.W.3d 94 (Tex.Crim.App. 2013) We see no compelling reason to construe the sworn affidavit contemplated by Article 18.01(b) necessarily to require that the oath always be administered in the corporal presence of the magistrate, so long as sufficient care is taken in the individual case to preserve the same or an equivalent solemnizing function to that which corporal presence accomplishes. Clay v. State - Dissent If the legislature had meant to allow warrants to be sworn to by telephone, it would have said so. [O]nly the legislature can amend or supplement the statute to specifically regulate the process of obtaining a search warrant by electronic means. and so they did. H.B. 326 (eff. September 1, 2015) adds 18.01(b-1) to C.C.P. 3
Article 18.01(b-1), C.C.P. Authorizes magistrate to consider additional testimony and exhibits communicated by telephone or other reliable electronic means to determine probable cause for the issuance of a search warrant Requires magistrate to ensure all testimony is recorded verbatim, transcribed and certified as accurate, and preserved Authorizes magistrate to transmit warrant back to applicant or direct applicant to sign judge's name Federal Rules Since 1977, Federal Rules of Criminal Procedure (Rule 41) have allowed telephonic applications for search warrants A majority of states (37) allow Telephonic / Electronic Search Warrants: Including Alaska, Arizona, Arkansas, Alabama, California, Colorado, Delaware, Florida, Idaho, Illinois, Louisiana, Michigan, Minnesota, Montana, Nebraska, New York, New Jersey, Oklahoma, Oregon, South Dakota, Utah, Washington and Wisconsin Pitfalls And Protocols 4
Pitfalls of 18.01(b-1) 18.01(b-1) is permissive, not mandatory Practical Implications Technology may be unavailable/inoperative Encourages incomplete ( sloppy ) police work Police may view refusal to use procedure as antagonistic or not neutral Invitation to Testify Testifying as a Magistrate Suppression Hearings Juvenile Confessions Challenges to Probable Cause Sufficiency Statements made during 15.17 Hearings Now, Art. 18.01(b-1) Invitation to come to the party! Protocols for 18.01(b-1) 5
18.01(b-1) ANALYSIS (Step 1) ARREST WARRANT OR SEARCH WARRANT? ARREST WARRANT SEARCH WARRANT Cannot use 18.01(b-1) process! (Must use Art. 15.03 C.C.P.) 18.01(b-1) process permissible Proceed to Step 2 18.01(b-1) ANALYSIS (Step 2) Does affidavit establish P.C. to believe contraband or criminal evidence will be found at location? Yes No Issue the warrant (18.01(b-1) not necessary) Deny the warrant or MAY Proceed to Step 3 18.01(b-1) ANALYSIS (Step 3) Is Affiant available to testify to/about additional facts? No Yes Do not issue the warrant May use 18.01(b-1) to evaluate warrant application Proceed to Step 4 6
18.01(b-1) ANALYSIS (Step 4) Is application requested by telephone or other electronically reliable means? No Yes No statutory authority to consider additional testimony / exhibits May consider additional testimony / exhibits, but Magistrate must follow specific procedures (Step 4) If probable cause is based on affidavit only, Magistrate may: administer oath by telephone and acknowledge attestation in writing on affidavit *** Is verbatim electronic recording required? (Step 4 Cont d.) If probable cause is based on affidavit and additional testimony or exhibits, Magistrate shall: place witness(s) under oath record all testimony verbatim ensure recording is transcribed, certified as accurate and signed by magistrate preserve all affidavits, recordings and/or exhibits 7
(Step 4 Cont d.) Original Search Warrant Proposed Duplicate Original Search Warrant Modified Original Search Warrant (Step 4 Cont d.) If the warrant is modified, the Magistrate shall: transmit modified version of warrant to applicant by reliable electronic means ; or file modified original and direct applicant to modify proposed duplicate original accordingly. (Step 4 Cont d.) Finally, the Magistrate shall: sign original documents (affidavit and warrant) enter date and time of issuance on warrant 8
Art. 18.01(B-1) - Suppression Evidence obtained under 18.01(b-1) is not subject to suppression on grounds it was unreasonable under the circumstances, absent a finding of bad faith Other Considerations Police Protocols Agreement on: Standardized form of Affidavit and Warrant* File format Method of document transmission Method of video transmission Method of recording supplemental testimony Suggested Jurat for Telephonic Search Warrants Information justifying the issuance of this search warrant was submitted to me by reliable electronic means, and was sworn to, signed and attested to electronically pursuant to Art. 18.01(b-1) C.C.P. 9
New Protocol for all Search Warrants HB 644 Contents of Warrants (Art. 18.04) Magistrate s name must appear in clearly legible handwriting or in typewritten form along with signature Protocol for Particular Search Warrants HB 1396 Cell Phone Searches (Contents) Only by a judge in the judicial district See Search and Seizure Webinar by Tom Bridges (suggested search warrant form) HB 324 Body Cavity Searches During Traffic Stops No search without warrant 10
(AGENCY NAME) POLICE DEPARTMENT AFFIDAVIT IN SUPPORT OF A TELEPHONIC SEARCH WARRANT Search Warrant No. Report No. Date: Officer s Name: I.D.# Judge: Hello? Officer: Judge, this is, I.D.# of the (Agency Name) Police Department. I am requesting a Telephonic Search Warrant. Will you swear me in, please? Judge: (Judge swears you in) Officer: This is of the (agency name) Police Department, I am calling you on (Date & Time) at hours with (name) standing as a witness. I am calling for a telephonic search warrant, pursuant to Art. 18.01 of the Texas Code of Criminal Procedure, and have probable cause to believe that there is now in the blood/body fluids of (name), whose date of birth is and who is currently detained by the (agency name) Police Department and physically located at, the following substances, to-wit: [ ] alcohol [ ] drugs [ ] combination of alcohol and drugs [ ] DNA together with other evidence of the crime of: [ ] driving while intoxicated [ ] actual physical control of a vehicle while intoxicated [ ]. As set forth in this affidavit, I,, your Affiant, am a peace officer in the State of Texas employed by the City of (agency name). I have been a sworn peace officer for years and have the following training and experience: [ ] TCOLE [ ] (agency name) Police Academy [ ] NTCOG [ ]. My training included identifying driver impairment due to alcohol or drugs. My duty assignments have included traffic, criminal and DWI investigations. I have specialized training in: [ ] Field Sobriety tests [ ] H.G.N. (Horizontal Gaze Nystagmus) [ ] Phlebotomy [ ] D.R.E. (Drug Recognition Expert) [ ] DWI investigation and apprehension [ ] I am investigating the offense of: [ ] DWI [ ] Aggravated DWI [ ] Aggravated Assault [ ] Intoxication Manslaughter [ ] Homicide [ ] Which I believe has/have been committed on the day of, 20, at the time of hours at the location of in the territorial limits of the City of, Texas, based on the following reasons and circumstances: [ ] Collision (describe location and circumstances): [ ] Driving behavior (list violations or physical control):
(AGENCY NAME) POLICE DEPARTMENT AFFIDAVIT IN SUPPORT OF A TELEPHONIC SEARCH WARRANT Search Warrant No. Report No. The driver license status of (Defendant) is. In addition, the following observations of symptoms of consumption and/or impairment of the defendant were made by of the: ODORS OF ALCOHOL PUPILS EYES [ ] faint [ ] equal [ ] watery [ ] moderate [ ] slow reaction [ ] bloodshot [ ] strong [ ] dilated/constricted [ ] Other [ ] Other [ ] Other FACE SPEECH CLOTHING [ ] dazed expression [ ] slurred [ ] orderly [ ] flushed [ ] incoherent [ ] soiled [ ] pale [ ] profanity [ ] disarranged [ ] Other [ ] Other [ ] Other ATTITUDE BALANCE UNUSUAL ACTIONS [ ] antagonistic [ ] swaying [ ] belching [ ] combative [ ] lost balance/fell down [ ] vomiting [ ] mood swings [ ] staggering [ ] urinated on self [ ] Other [ ] Other [ ] Other In addition: I believe that the property, substances and behavior that I have described in this affidavit is/are evidence of driving or being in actual physical control of a vehicle while intoxicated by alcohol, drugs, or a combination of both. NIGHTTIME SEARCH WARRANT I believe that it is necessary to obtain this evidence after 10:00 pm and before 6:00 am for the reason that it is now hours. Therefore, I cannot effectively serve and execute the warrant during daytime hours. The evidence requested is of a perishable nature and a time delay would render it useless. Based on the preceding facts, I,, I.D. #, request that a telephonic [ ] nighttime [ ] daytime search warrant be issued. This concludes my affidavit, Your Honor. Judge: (await his/her reply) Officer: I will now read to you verbatim the Duplicate Original Search Warrant Affiant s Signature: Witness Signature: